Articoli
01/11/2015
Administrative & European Public Law

EU, the Connected Continent: Roam like at Home and Net neutrality

On 27 October 2015 the European Commission (Commission) has welcomed the vote by the European Parliament (EU Parliament) to end roaming charges by June 2017 and to introduce net neutrality rules for the first time in EU law.

The ‘Connected Continent’ Proposal[1] for a telecoms single market, which was proposed by the Commission in September 2013, aimed at completing a European single market for electronic communications.

In June 2015, the EU Parliament, Council and Commission reached an agreement in trilogue on a partial approach, agreeing on just two points of those listed in the footprint note: roaming charges and net neutrality. Most of the remaining aspects of the initial proposal will be addressed in a review of EU telecoms rules in 2016. In fact, creating the right conditions for digital networks and services is a key objective of the Commission’s plan for a Digital Single Market[2] presented in May 2015.

The Digital Single Market, aims to break down the barriers, and to offer more opportunities: it wants be a seamless area where people and business can trade, innovate and interact legally, safely, securely, and at an affordable cost.

Moreover, a completed Digital Single Market will also ensure that Europe maintains its position as a world leader in the digital economy, helping European companies to grow globally.

No roaming charges after 15 June 2017

Roaming is the practice of charging extra for making and receiving mobile-phone calls, transmitting or receiving data, or accessing other services when travelling outside the geographical coverage area of the home network. For a decade, as a result of three EU Regulations[3], roaming charges have decreased within the EU (data roaming is now 91% cheaper compared to 2007).

The proposed regulation will bring this to an end. A complete ban on roaming charges for using mobile phones abroad in the EU is became law.

It will take effect by June 2017 in two phases: a transitional period from 30 April 2016 until 14 June 2017, where roaming will be charged at the domestic call price plus a small surcharge (i.e. €0.05 per minute for outgoing voice calls, €0.02 for text messages (SMS), or €0.05 per megabyte of mobile internet use); and a second phase from 15 June 2017, after which all European consumers would pay the same price for calls, texts and mobile data, wherever they are travelling in the EU, as at home.

This abolition of roaming surcharges has been long awaited by everybody: ordinary people, start-ups, SMEs [small to medium-sized enterprises] and all kinds of organisations’ said the rapporteur, Pilar del Castillo (EPP, ES), in the debate before the vote.

The regulation will also introduce a ‘Fair use safeguard’ to prevent abusive uses or permanent roaming. i.e. according to the Commission, ‘if the costumer buys a SIM card in another EU country where domestic prices are lower to use it at home; or if the customer permanently stays abroad with a domestic subscription of their home country’[4]. The exact details for this will be defined by the Commission and telecoms regulators.

The increasing number of Europeans who travel in the EU are the primary beneficiaries. The measure will also create a better environment for businesses and for innovation. The new rules will notably promote the cross-border use of connected devices and services (e.g. connected cars) and boost the evolution of mobile apps, on which one million Europeans now work.

Roaming charges currently teach users to switch off their mobile phone when abroad. If they are not afraid of their bills anymore, they will use their devices more regularly when they are travelling – this means more opportunities for online businesses and start-ups to provide services to consumers when they travel in the EU.

Network neutrality

Network neutrality, (or more simply, net neutrality) refers to how data transmissions are managed over an electronic communications network. For working purposes, the Body of European Regulators for Electronic Communication (BEREC)[5] defines net neutrality to mean that all electronic communication passing through a network is treated equally (i.e. independently of content, application, service, device, sender or receiver)[6].

Until now, there have been no clear rules on net neutrality at EU level, leaving most Europeans without legal protection for their right to access the open internet. Some EU countries have adopted national laws on net neutrality. However, in a Digital Single Market, we cannot afford that 28 Member States adopt 28 different approaches on that issue. The freedom of European citizens to access or distribute internet content must not depend on the country in which they are. Having an EU law on net neutrality will avoid further fragmentation of telecoms regulation in Europe.

The agreed proposal includes the principle of net neutrality in Article 3 (3): “Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used.”

It means that there will be truly common EU-wide internet rules, contributing to a single market and reversing current fragmentation. All traffic will be treated equally. This means, for example, that there can be no paid prioritisation of traffic in the internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to justified technical requirements, and which must be independent of the origin or destination of the traffic and of any commercial considerations. Common rules on net neutrality mean that internet access providers cannot decide which content and services are available because all content and services will be available at the same velocity. Every European must be able to have access to the open internet and all content and service providers must be able to provide their services via a high-quality open internet.

The rules establish the principle of equal and non-discriminatory traffic management and prohibit any blocking, throttling, degradation or discrimination of internet traffic by internet service providers. This general prohibition is subject to a limited number of tightly defined and exhaustive exceptions:

  • to comply with Union or national legislation related to the lawfulness of content or with criminal law, or with measures implementing this legislation such as a decision by public authorities or a court order, for instance if a judge or the police have ordered blocking of specific illegal content;
  • to preserve the security and integrity of the network, for instance to prevent misuse of a network and combat viruses, malware or denial of services attacks;
  • to minimise network congestion that is temporary or exceptional. This means that operators cannot invoke this exception if their network is frequently congested due to under-investment and capacity scarcity.

Under the Regulation, consumers will be informed about the minimum and maximum available internet speeds they can expert when signing a contract. If the operator does not deliver the promised speeds, this would be deemed to be a breach of contract.

Thanks to this agreement, Europe will also become the only region in world which legally guarantees open internet and net neutrality. The principle of net neutrality will be applied directly in the 28 member states. It also ensures that we will not have a two-speed internet’ said Pilar del Castillo (EPP).

Proponents of net neutrality believe that an open internet is the best guarantee of freedom expression. Nevertheless, it is mandatory to consider privacy issues. Internet Service Providers (ISPs) may use different techniques to improve internet traffic. Some of these techniques may be very intrusive, and even let ISPs know the content of the traffic that passes through their networks.

Depending on the level of intrusion, such techniques may infringe on the principles of data minimisation: accessing personal and identification data as little as possible and proportionality: the action taken should not exceed that which is strictly necessary to achieve the set objectives. Therefore it could be incompatible with EU data protection law, in particular the ePrivacy Directive[7] and the Data Protection Directive[8].

 

 

[1]The main proposal’s issues are: i) simplification of regulation for companies; ii) more coordination of spectrum use, so that we see more wireless broadband, more 4G investment, and the emergence of pan-EU mobile companies with integrated networks; iii) standardised fixed access products, encourages more competition between more companies and facilitates increasing provision of pan-EU services; iv) protection of Open Internet, guarantees for net neutrality, innovation and consumer rights; v) pushing roaming premiums out of the market through a carrot and stick approach to say goodbye to roaming premiums by 2016 or earlier; vi) consumer protection: plain language contracts, with more comparable information, and greater rights to switch provider or contract.

[2] The Digital Single Market strategy is made up of three policy areas: i) better online access to digital goods and service; ii) an environment where digital networks and services can prosper; iii) digital as a driver for growth.

[3] Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union; Regulation (EC) No 717/2007 of the European Parliament and of the Council of 27 June 2007 on roaming on public mobile communication networks within the Community and amending Directive 2002/21/EC; Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive)

[4] European Commission Fact Sheet – questions and answers on roaming charges and open Internet.

[5] The role of BEREC: in April 2011, the Commission asked the Body of European Regulators for Electronic Communications (BEREC) to undertake a fact-finding exercise on issues crucial to ensuring an open and neutral Internet, including barriers to changing operators, blocking or throttling of Internet traffic, transparency and quality of service. As a result, BEREC published in May 2012 the results of its traffic management investigation, which covered more than 400 fixed and mobile ISPs and gives a very good overview of traffic management practices in Europe. BEREC’s results show that there is an undeniable problem regarding open Internet in Europe and now is the moment to take action. BEREC had also previously published a Report on best practices to facilitate switching in October 2010 as well as a framework for quality of service in December 2011. At the same time, BEREC adopted guidelines on transparency by identifying best practices and recommended approaches. In December 2012, BEREC published its guidelines on quality of service as well as reports on differentiation practices and related competition issues, and IP Interconnection.

[6] R. Davies, European Parliamentary Research Service ‘Net neutrality in Europe’.

[7] Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.

[8] Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

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